STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
06-167
STATE OF LOUISIANA
VERSUS
TIMOTHY E. ROBERTSON
OPINION ON REMAND FROM THE LOUISIANA SUPREME COURT
**********
APPEAL FROM THE THIRTY-FIFTH JUDICIAL DISTRICT COURT PARISH OF GRANT, NO. 04-575 HONORABLE ALLEN A. KRAKE, DISTRICT JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and Michael G. Sullivan, Judges.
AFFIRMED AND REMANDED.
James Patrick Lemoine District Attorney - Parish of Grant James D. White, Jr. Assistant District Attorney - Parish of Grant P. O. Box 309 Colfax, LA 71417 Telephone: (318) 627-3205 COUNSEL FOR: Plaintiff/Appellee - State of Louisiana Richard Emile deVargas 506 Front Street Natchitoches, LA 71457 Telephone: (318) 354-8222 COUNSEL FOR: Defendant/Appellant - Timothy E. Robertson THIBODEAUX, Chief Judge.
Our original opinion1 was affirmed in part and reversed in part by the
Louisiana Supreme Court. The supreme court affirmed our decision to reverse the
Defendant’s conviction for “Creation or operation of a clandestine laboratory for the
unlawful manufacture of CDS II, in violation of La.R.S. 40:983(A)(3); second
offender, in violation of La.R.S. 40:982” because it constituted a non-crime.
Louisiana Revised Statutes 40:982 is a post-conviction enhancement statute. It
reversed our decision to invalidate the entire conviction and not merely the erroneous
portion. The supreme court further concluded that the trial error of placing prior
crimes in a bill of information was subject to a harmless error analysis and, in this
case, the error was harmless. The supreme court later granted a rehearing for the
“limited purpose of transferring this case to the Third Circuit Court of Appeal for
their consideration of the assignments of error previously assigned by defendant to
the court of appeal and pretermitted by the court of appeal.” State v. Robertson, 06-
1537 (La. 1/16/08), ___ So.2d ___, (reh’g granted 3/14/08).
For the following reasons, we affirm the Defendant’s conviction for the
lesser-included offense of Creation or operation of a clandestine laboratory for the
unlawful manufacture of CDS II, to-wit, Methamphetamine and remand to the trial
court for sentencing.
I.
ISSUES
Consistent with our Louisiana Supreme Court’s remand instruction, we
shall consider whether:
1 State v. Robertson, 06-167 (La.App. 3 Cir. 5/31/06), 931 So.2d 523. (1) the evidence presented at trial is insufficient to sustain a conviction for Creation or operation of a clandestine laboratory for the unlawful manufacture of CDS II, to-wit, Methamphetamine;
(2) the trial court erroneously denied Defendant’s Motion to Suppress;
(3) the trial court erroneously allowed the introduction of “other crimes” evidence; and,
(4) the trial court erroneously allowed the State to introduce the transcript of Defendant’s previous guilty plea after the State had closed its case in chief.
II.
LAW AND DISCUSSION
Insufficiency of the Evidence
Defendant contends the evidence presented at trial was insufficient to
support his conviction in that there was no proof of intent. Specifically, he notes
some components needed for the production of methamphetamine, namely, anhydrous
ammonia, muriatic acid, and denatured alcohol, were not present at the residence.
Additionally, Defendant points out that his fingerprints were not found on the seized
items. Finally, Defendant argues there was no evidence proving he was in
constructive possession of these items. A ruling that the evidence is insufficient
would necessitate an acquittal; thus, we have addressed this assignment of error first
pursuant to State v. Hearold, 603 So.2d 731 (La.1992).
In State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d
1367, 1371, this court set forth the standard of review to be used by appellate courts
in addressing a sufficiency review:
When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most
2 favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.
Louisiana Revised Statutes 40:983 provides in pertinent part:
A. Creation or operation of a clandestine laboratory for the unlawful manufacture of a controlled dangerous substance is any of the following:
(1) The purchase, sale, distribution, or possession of any material, compound, mixture, preparation, supplies, equipment, or structure with the intent that it be used for the unlawful manufacture of a controlled dangerous substance.
(2) The transportation or arranging for the transportation of any material, compound, mixture, preparation, supplies, or equipment with the intent that such material, compound, mixture, preparation, supplies, or equipment be used for the unlawful manufacture of a controlled dangerous substance.
(3) The distribution of any material, compound, mixture, preparation, equipment, supplies, or products, which material, compound, mixture, preparation, equipment, supplies, or products have been used in, or produced by, the unlawful manufacture of a controlled dangerous substance.
(4) The disposal of any material, compound, mixture, preparation, equipment, supplies, products, or byproducts, which material, compound, mixture, preparation, equipment, supplies, products, or byproducts have been
3 used in, or produced by, the unlawful manufacture of a controlled dangerous substance.
B. It shall be unlawful for any person to knowingly or intentionally create or operate a clandestine laboratory for the unlawful manufacture of a controlled dangerous substance.
In our view, the State presented sufficient evidence to prove Defendant’s
guilt of the charge of creation or operation of a clandestine laboratory beyond a
reasonable doubt. At trial, Defendant’s probation and parole agent, Cole Gralap,
testified that on June 29, 2004, he went to the residence of Nova Young, where
Defendant was residing, for the purpose of administering a urine test. Officer Gralap
asked Detective Todd Durham of the Grant Parish Sheriff’s Department to
accompany him for safety reasons. Officer Gralap testified he became suspicious on
a prior visit to the home when he saw a padlock on Defendant’s bedroom door and
a fan blowing air out of the bedroom window.
While Officer Gralap was administering the urine test, he asked
Detective Durham to check Defendant’s room for weapons and contraband. In
Defendant’s bedroom, Durham located a coffee grinder, salt, a section of black hose,
pipefittings with a brass valve, filters, a cook stove, a spoon, boxes of “labeled off
pseudoephedrine boxes,” Pyrex bowls, a couple of two liter plastic jugs, and a couple
of pint jars, one containing eight lithium batteries soaking in a solution, and the other
containing a brown substance thought to be drain cleaner. Additionally, in a metal
box, Durham located labels of antihistamines and decongestants as well as a bag of
crushed pseudoephedrine.2 Found in the kitchen were a fire extinguisher that had
contained anhydrous ammonia at one time and a bottle of professional drain cleaner.
Finally, in Ms. Young’s outside storage building, Detective Durham located two
2 The parties stipulated to the fact that the substance was tested by the crime lab and found to be pseudoephedrine.
4 empty propane bottles. One was fitted with a plastic nozzle at the top, and the other
had only a threaded hole which matched the pipe with the brass fitting found in the
bedroom.
Deputy Brad Sudduth, who is certified in the investigation of
methamphetamine labs, was contacted and asked to come to the residence. He
testified that the “Nazi” method of manufacturing methamphetamine could be carried
out with the items found in the residence, with the exception that a sufficient amount
of anhydrous ammonia, muriatic acid, and denatured alcohol were needed. At the
time the items were located in the residence, Defendant did not have a “working lab.”
However, the presence of the ground pseudoephedrine pills and the ingredients to
make an HCO gas generator (with the exception of muriatic acid) made it appear to
Sudduth that the manufacturing process had begun. According to Deputy Sudduth,
the pseudoephedrine that was recovered could have made 45.24 grams “under the 60
percentile rate.”3 This would have been worth approximately $4,500.00.
After the items were found in Defendant’s room, Detective Durham
advised Defendant of his rights, and Defendant initially denied ownership of the
items, saying that the items were there when he moved in. However, Deputy Sudduth
testified that after he advised Nova Young of her rights, Defendant admitted that the
components of the methamphetamine lab were his and Nova was not involved.4
Nova Young testified at trial that Defendant stayed with her from April
to June of 2004. Ms. Young testified that before Defendant moved into the spare
3 Deputy Sudduth testified that when calculating the conversion rate from the ephedrine to the methamphetamine, they use a baseline of 60 percent, which is very conservative. He testified that in a very controlled setting it is possible to get up to 93 percent, but this is not normally seen on the street. 4 Additionally, Detective Durham testified that Misty Atwell, Nova’s daughter, said that “she had seen Mr. Robertson a couple of days before with a Wal-Mart sack containing the salt and the coffee filters. She had seen him bring it into the residence and go into the room with it.”
5 bedroom, they cleaned everything, including the closet. With the exception of the
safe, Ms. Young did not recall any of the items that were found in Defendant’s
bedroom being there at the time she and Defendant cleaned the room.
To show identity, motive, knowledge, and plan, the State introduced,
through the testimony of Deputy Sudduth, evidence concerning a previous
investigation of Defendant in April of 2002 for manufacturing methamphetamine.
At that time, Defendant was found with “pill soak,” the first stage of manufacturing
methamphetamine, in his vehicle. In an interview with Deputy Sudduth, Defendant
admitted it was his “pill soak,” but he explained that he simply carried out the first
stage of the process and someone else did the cooking.
Defendant was found in possession of most of the items required to
manufacture methamphetamine, and he admitted that the items and equipment were
his. His April 2002 statement to Deputy Sudduth reveals his knowledge of the
various components needed for manufacturing methamphetamine and of the different
stages of the process. Considering the evidence presented at trial, there was sufficient
evidence presented to prove beyond a reasonable doubt that Defendant possessed
supplies and equipment used in the production of methamphetamine and that he had
the intent to use them for the unlawful manufacture of methamphetamine.
Defendant admitted that the items and equipment used in the operation
of a methamphetamine laboratory were his. Additionally, the judge gave a limiting
instruction to the jury regarding the use of the prior conviction. The error in
presenting the evidence of the prior crime was harmless.
Motion to Suppress
Defendant contends the trial court erred in denying his Motion to
Suppress. Specifically, Defendant contends the officers conducted a warrantless
6 search of his residence without reasonable suspicion to believe he was involved in
criminal conduct and absent exigent circumstances. Defendant contends the presence
of a fan in his room in the middle of the summer cannot be held to constitute
reasonable suspicion that criminal activity is ongoing. He additionally notes the
search was carried out by an officer other than his parole officer. Thus, Defendant
contends his statement and the evidence found on June 29, 2004, should have been
suppressed.
When a trial court rules on a defendant’s motion to suppress, the appellate court must look at the totality of the evidence presented at the hearing on the motion to suppress. The appellate court should not overturn a trial court’s ruling, unless the trial court’s conclusions are not supported by the evidence, or there exists an internal inconsistency in the testimony of the witnesses, or there was a palpable or obvious abuse of discretion. State v. Burkhalter, 428 So.2d 449 (La.1983), and State v. Gaspard, 96-1279 (La.App. 3 Cir. 2/11/98); 709 So.2d 213. The admissibility of evidence seized without a warrant is a question for the trial court. Its conclusions on credibility and the weight of testimony regarding the voluntariness of a consent for admissibility purposes will not be overturned on appeal, unless the conclusions are unsupported by the evidence. State v. Gachot, 609 So.2d 269 (La.App. 3 Cir. 1992), writ denied, 617 So.2d 1180 (La.1993), cert. denied, 510 U.S. 980, 114 S.Ct. 478, 126 L.Ed.2d 429 (1993).
State v. Bargeman, 98-617, p. 5 (La.App. 3 Cir. 10/28/98), 721 So.2d 964, 967, writ
denied, 99-0033 (La. 5/28/99), 743 So.2d 658.
A preliminary examination was held on January 27, 2005. Officer Cole
Gralap’s testimony presented that day and Deputy Todd Durham’s testimony, heard
February 10, 2005, were considered in denying the Motion to Suppress.
Officer Cole Gralap testified that he supervised Defendant on both parole
and probation at the time the offense occurred. Defendant was on parole for
possession with intent to manufacture and distribute methamphetamine. One of the
7 conditions of Defendant’s probation was that he allow Gralap to visit in his home.
On April 29, Gralap visited Defendant at his listed address, which was an address
Officer Gralap was familiar with. After Defendant did not report to Gralap’s office
in either April or May, Officer Gralap returned to the residence on June 18. At that
time, he visited another of his probationers, Amy Leonard. She was temporarily
staying at the residence, and she had tested positive for crystal methamphetamine.
Officer Gralap explained the significance of this to him:
A It held a lot of significance to me, because in, in the circle that I have of probation and parolees in that area Ms. Leonard is . . . just moved to the address. And I also noticed when I went there that they had a fan coming out of the bedroom, which is, is commonly used to ventilate what would be a, a meth cook. At that time I told Mr. Robertson, hello, but I was most concentrating on Ms. Leonard because she was at that time positive for crystal meth and we were going forward with court proceedings in that matter. But I took note of Mr. Robertson and I wanted to come back to the residence when I was more available to take a look and see what was going on, because at that point I thought Mr. Robertson may be involved in the production of methamphetamine again. That opportunity presented itself to me on June 29th.
Officer Gralap testified that he took no action on the June 18 visit
because he was alone with two convicted felons, one of whom tested positive for
crystal methamphetamine and the other one known to manufacture methamphetamine
and carry a weapon. Officer Gralap testified that he is the only probation officer
assigned to Grant Parish, so he tries to work with local law enforcement as much as
possible for his safety.
On the night of June 29, Officer Gralap requested the assistance of a
Grant Parish deputy for safety reasons. According to Officer Gralap, he initiated the
contact with the sheriff’s office, and they “had confirmed to me that once I had told
8 them what was going on they said, well, you know, that’s, that’s somebody who does
that and . . . you know. So, I think they may have had some information, I don’t
know that for certain.” However, Gralap confirmed that he, not the sheriff’s
department, initiated the visit to Defendant’s residence that evening, and he testified
that he also wanted to conduct a drug test on Defendant.
Shortly after his arrival at the residence, Officer Gralap had Defendant
walk to the restroom to provide a urine sample. As they passed Defendant’s
bedroom, Officer Gralap noticed a padlock on the door. Defendant told Gralap that
the padlock was to keep the children out of his room. This indicated to Officer
Gralap that there must be something dangerous in Defendant’s bedroom. Officer
Gralap testified he went into the room and upon observing several items, he turned
the matter over to Deputy Todd Durham for a criminal investigation. Detective
Durham was the only officer there at that time. As the case unfolded, they contacted
Detective Sudduth to come to the scene.
Officer Gralap testified he observed batteries soaking in a large glass jar;
this facilitates separation of the battery for use in the production of crystal
methamphetamine. The presence of a safe in Defendant’s bedroom also raised
Officer Gralap’s suspicions. Detective Durham subsequently recovered a number of
items of which Defendant initially denied ownership. However, when Nova Young
was about to be arrested along with Defendant, Defendant admitted the recovered
items were his and had no connection to Nova Young.
Officer Gralap was asked whether he needed a search warrant to conduct
a search of Defendant’s residence as a parole officer. He explained:
A Well, we use a residence check and if we notice something that is possibly criminal we . . . I, I think what we need is a . . . what’s determined to be reasonable suspicion is . . . as I’ve been trained, that
9 if I have reasonable suspicion then I can actually look in . . . at the residence a little more. What we do in a normal residence check is a cursory check. We’ll open up a closet or something to make certain that they don’t have any firearms. And we do that with most first visits and then from time to time thereafter to make certain that there’s . . . a lot of time what will occur, somebody will get out, they’ll go to a residence and they’ll have a shotgun in the residence, and we make it clear that that has to not be there.
Officer Gralap’s trial testimony may also be considered in reviewing the
trial court’s denial of a motion to suppress. See State v. Brumfield, 96-2667 (La.
10/20/98), 737 So.2d 660, cert. denied, 526 U.S. 1025, 119 S.Ct. 1267 (1999).
Officer Gralap’s testimony at trial varied from his testimony at the suppression
hearing in that he testified at trial that he asked Detective Durham to check
Defendant’s room for contraband or weapons; he did not testify that he first searched
the room himself, as he had said at the suppression hearing. He explained at trial that
from his vantage point he could see the bedroom being opened and Detective Durham
inside. He testified that he did not leave Defendant alone, so he would not have been
in Defendant’s bedroom at the same time as Durham.
At the suppression hearing, Detective Durham testified that he met
Officer Gralap on the road and Gralap told him he was going to Defendant’s
residence to conduct a urine test and to check the residence for contraband or
weapons. Officer Gralap asked for Detective Durham’s assistance. Although it was
Durham’s first time to assist Officer Gralap in a residence check, Durham testified
that it was routine for the probation officer to ask the sheriff’s office to provide back
up. Detective Durham testified that he accompanied Officer Gralap for safety and to
assist Gralap with “whatever he needed assistance with.” Durham testified he had not
planned to go to the Defendant’s residence and conduct any type of search prior to
10 Gralap asking for assistance. According to Durham, the residence was known as
having housed several subjects involved with narcotics.
Detective Durham testified that upon their arrival at Defendant’s
residence, Officer Gralap told Defendant why they were there and then accompanied
Defendant to the bathroom to obtain the urine sample. While Defendant was giving
his urine sample, Detective Durham stood in the living room and watched down the
hall, providing security for Officer Gralap. Defendant then returned to the living
room, and Officer Gralap was standing in the hall. He asked Detective Durham to
look in Defendant’s room for any contraband or weapons. Defendant informed
Officer Gralap which bedroom was his and that it had a lock on the door. The lock
was opened, and Detective Durham entered the room. According to Detective
Durham, Officer Gralap “was standing at the bedroom while I was in the room. He
was looking through some of the items.” Detective Durham testified he observed
some lithium batteries soaking in a jar, Pyrex bowls, and plastic bottles in plain view.
The items were recognizable to Detective Durham as being items used in the
manufacture of methamphetamine. At this point, he was suspicious that Defendant
was involved in criminal activity.
Detective Durham advised Officer Gralap of what he had found and then
he advised Defendant of his Miranda rights. Detective Durham then obtained
consent to search the residence and outbuildings from the owner. A subsequent
search revealed other items associated with methamphetamine production. Durham
asked Defendant about the ownership of the items found in his bedroom, and
Defendant initially said the items were there when he moved in. This did not seem
reasonable to Durham considering the placement of the items in the room. When
Defendant denied ownership of the items, Detective Durham asked the owner if she
11 knew anything about the items. She advised she knew nothing about the items in the
bedroom. She informed him that Defendant was the only one with access to the
room. When Detective Durham advised both Ms. Young and Defendant that he was
going to have to place them under arrest, Defendant admitted all the items found in
the residence were his. Durham testified Defendant had been Mirandized prior to
making this statement.
Detective Durham testified that Defendant’s address was familiar to him
because he had responded to other calls there and he knew that one person who had
lived there prior to Defendant was a convicted drug offender.
The court denied the Motion to Suppress and noted that Officer Gralap
initiated the visit to Defendant’s residence.
In State v. Hamilton, 02-1344, pp. 3-6 (La.App. 1 Cir. 2/14/03), 845
So.2d 383, 387-89, writ denied, 03-1095 (La. 4/30/04), 872 So.2d 480, the first circuit
summarized jurisprudence covering the lesser expectation of privacy of probationers
and parolees, the basis for conducting a warrantless search of such an individual, and
the criteria for determining whether a search is reasonable:
A parolee has a reduced expectation of privacy, subjecting him to reasonable warrantless searches of his person and residence by his parole officer. See State v. Malone, 403 So.2d 1234, 1238 (La.1981). The reduced expectation of privacy is a result of the parolee’s conviction and agreement to report to a parole officer and to allow that officer to investigate his activities in order to confirm compliance with the provisions of his parole. State v. Vailes, 564 So.2d 778, 780-781 (La.App. 2d Cir. 1990). A parole officer’s powers, however, are not without some restraints. A parole officer may not use his authority as a subterfuge to help another police agency that desires to conduct a search but lacks the necessary probable cause. The parole officer must believe that the search is necessary in the performance of his duties and reasonable in light of the total circumstances. In determining the reasonableness of a warrantless search of a parolee and his residence, the court must consider: (1) the scope of the particular
12 intrusion; (2) the manner in which the search was conducted; (3) the justification for initiating the search; and (4) the place it was conducted. State v. Vailes, 564 So.2d at 781.
In State v. Vailes, the probation officer had received information from a narcotic officer and a confidential informant that the defendant was possibly selling drugs out of, and keeping weapons in, his home. A search of the home revealed a shotgun in plain view in a bedroom and a rifle and other spare weapons parts on a table in a garage. The court concluded that this warrantless search was a reasonable exercise of the probation officer’s authority. State v. Vailes, 564 So.2d at 781.
It is an appropriate function of a parole officer to conduct unannounced, random checks on parolees. A parolee agrees to submit to such unannounced visits from his parole officer as a condition of parole. State v. Wesley, 28,941, p. 8 (La.App.2d Cir. 12/13/96), 685 So.2d 1169, 1174, writ denied, 97-0279 (La. 10/10/97), 703 So.2d 603. While the decision to search must be based on something more than a mere hunch, probable cause is not required, and only a reasonable suspicion that criminal activity is occurring is necessary for a probation officer to conduct the warrantless search. State v. Epperson, 576 So.2d 96, 99 (La.App. 2d Cir.), writ denied, 580 So.2d 920 (La.1991).
In State v. Shields, 614 So.2d 1279, 1284 (La.App. 2d Cir.), writ denied, 620 So.2d 874 (La.1993), the Second Circuit Court of Appeal found that the search for a probation violation was not a subterfuge for a criminal investigation where there was no ongoing investigation of the defendant at the time an informant reported a possible probation violation. It was also noted that the search of the residence was conducted by probation officers only. Likewise, in State v. Wesley, 685 So.2d at 1175, the court concluded that the search of the parolee’s residence was not a subterfuge for a police investigation when the parole officers testified that they often conducted routine visits or checks on parolees and that they called the sheriff’s office for back-up only when they encountered suspected criminal activity.
....
The jurisprudence allows police officers to accompany parole officers in surprise searches. See State v. Odom, 34,054, pp. 6-7 (La.App.2d Cir. 11/1/00), 772
13 So.2d 281, 287; State v. Shields, 614 So.2d at 1282-1284, and, most recently, U.S. v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001). In State v. Shrader, 593 So.2d 457 (La.App. 2d Cir.), writ. denied, 598 So.2d 353 (La.1992), the Second Circuit found that a warrantless search conducted by a parole officer was not a subterfuge for a criminal investigation. The court reasoned that the search conducted was based on reasonable suspicion that the defendant had violated the conditions of his parole. The court stated as follows:
Although there was police involvement, as Smith explained, it was departmental policy to have assistance when a probation officer intended to search or to effect an arrest. We do not find it unreasonable that the probation officer sought assistance from the sheriff’s department given the dangers attendant to such a confrontation. We do not consider this search a ‘stalking horse or a subterfuge’ for criminal investigation. There is no evidence contradicting the parole officer’s testimony that he initiated the visit and searched defendant’s premises in order to ensure Shrader’s compliance with the terms of his parole.
State v. Shrader, 593 So.2d at 460.
In Hamilton, the defendant was on parole for a conviction of possession
of drugs. Parole officers and a local detective received a tip from an anonymous
informant that the defendant was selling cocaine and that there was cocaine in a
dresser in his bedroom. The detective contacted one of the parole officers, and the
officer told him that he would be performing a residence check at the home and asked
for assistance. Later that day, the two parole officers, the detective, and two other
officers proceeded to the defendant’s house and conducted a search of the home
which revealed the presence of cocaine.
In concluding the search was not a subterfuge for a criminal
investigation, the court noted that the parole officers planned to carry out the
residence check from the tip received from the informant before they had contact with
14 the detectives. There was not an ongoing investigation at the time of the search, and
the detectives were present to assist the parole officers. The court also found the facts
supported a reasonable suspicion that the defendant may have been violating his
parole. The parole officer knew of the defendant’s previous drug conviction and the
information received from the informant was consistent with the same behavior.
Finally, the court found the scope of the search was not unreasonable:
Applying the factors provided in State v. Vailes, the scope of the search conducted by the agents and officers was not unreasonable under the circumstances. When the defendant arrived home, the agents and officers informed him of the reason for the residence check and the defendant allowed them to enter the home. Before discovering the substance suspected to be cocaine, Agent Phelps limited the search to the master bedroom in accordance with the information received in the tip. Agent Roberts and Sergeant Swann remained in the front of the home with the defendant. The defendant was handcuffed as a precautionary measure. Detective Mistretta and Detective Hover assisted Agent Phelps with the search of the bedroom. Detective Hover located the hidden compartment in the dresser of drawers. Agent Phelps opened the compartment and discovered the substance later determined to be cocaine. As previously discussed, the parole officers’ justification for initiating the search arose from their reasonable suspicion that the defendant was in violation of his parole. This reasonable suspicion was based on information received in a tip from a female informant who told the officers where drugs could be specifically located in the defendant’s home.
Hamilton, 845 So.2d at 389.
Under similar facts, the second circuit reached the same conclusion
regarding the lack of a subterfuge for criminal investigation in State v. Epperson, 576
So.2d 96 (La.App. 2 Cir.), writ denied, 580 So.2d 920 (La.1991). In that case,
probation officers went to the defendant’s residence to execute an arrest warrant.
While there, they observed a large amount of cash in plain view that gave them
reasonable suspicion that contraband was present. The defendant’s probation officer
15 then asked for the assistance of narcotics police officers and a narcotics dog. A
search of the residence revealed one marijuana cigarette, but a search of the outside
revealed a large amount of contraband. The court concluded the police involvement
was initiated by the probation officer and was not a subterfuge.
In this case, the trial court did not abuse its discretion in denying
Defendant’s Motion to Suppress. The facts support a reasonable suspicion that
criminal activity was occurring. Defendant was previously convicted of possession
with intent to manufacture and distribute methamphetamine. He was living at an
address known to be affiliated, on some level, with persons convicted of drug crimes.
Amy Leonard, a probationer who had tested positive for crystal methamphetamine,
was temporarily staying at the residence, and Officer Gralap saw a fan being utilized
in a manner consistent with ventilating a “meth cook.” Finally, the presence of a
padlock on Defendant’s bedroom door raised Gralap’s suspicions that something
dangerous was inside. These facts clearly supported reasonable suspicion to believe
criminal activity was occurring.
The scope of the search was not unreasonable. Upon arriving at
Defendant’s residence, Officer Gralap informed Defendant why he and Detective
Durham were there, and he had Defendant give a urine sample. The search was
initially limited to Defendant’s bedroom and several items were discovered in plain
view. Defendant remained in the living room while this search was carried out. Once
these items were found, consent to search the remainder of the residence and
outbuildings was obtained from the owner. Initiating the search was justified given
the facts known to Officer Gralap at the time, i.e., the presence of Ms. Leonard who
had tested positive for methamphetamine, the presence of a fan being utilized in a
manner consistent with methamphetamine production, and the presence of a padlock
16 on Defendant’s bedroom door. The search occurred at the address Defendant had
provided Officer Gralap and at which he had seen Defendant earlier that same month.
Finally, there is no indication the search was a subterfuge for a criminal
investigation. Officer Gralap, acting on his own suspicions regarding possible
probation violations, decided to visit Defendant’s residence. He initiated the contact
with Detective Durham and asked for assistance. There was no evidence indicating
there was an ongoing investigation at the time of the search. While it is not clear
from the trial court’s ruling, it is possible the trial court believed Officer Gralap’s
testimony at the suppression hearing that he carried out the initial search of
Defendant’s bedroom that led to the consent search of the remainder of the premises.
However, even if the trial court chose to believe Detective Durham’s testimony, that
it was he, not Gralap, who carried out the initial search, the trial court did not err in
its ruling in light of Hamilton and Epperson.
In addition to challenging the ruling on the motion to suppress, in this
assignment of error, Defendant claims the trial court erred in overruling his objection
to Officer Gralap’s testimony regarding the fan being used for ventilation purposes
in the production of methamphetamine. Defendant provides no record page reference
to support his argument; however, it appears Defendant is referring to Officer
Gralap’s trial testimony. The following exchange occurred while Gralap testified
about the presence of the fan on his June 18 visit:
Q Okay. Now, you mentioned something about a fan blowing out of . . .
A Uh-huh.
Q . . . did you notice that particular . . . and you’re . . . are you . . . what type of fan are you talking about, if you could describe it?
17 A It was a black fan that’s not even a box fan. It was a circular type fan, . . .
Q Okay.
A . . . if I remember correctly. And I actually noticed that on the prior visit, on June 18th, and, and that’s what started to raise some suspicions about Mr. Robertson in my mind.
Q A fan blowing outward from the room raised some suspicion in your mind at that point?
A There’s no . . . yes, in that it may be used as some type of ventilation and that it wasn’t blowing in, which is what I’m used to.
Q Okay. And I’ll, I’ll, I’ll stop you there. I’m not . . . Officer, have you had any actual trainings in, for example, the production or the cooking of methamphetamine that you . . .
A Just some basic educational training, that would be . . . you know, not nothing certified, just . . .
Q Okay. You’re not, you’re not lab certified, . . .
A Oh, no, no.
Q . . . any of that?
A No, just, just like an orientation type thing . . .
A . . . so you’ll know what it looks like basically.
Q But, but you’ve been trained to kind of pick up on certain items to . . .
BY MR. DEVARGAS: Your Honor, let me object at this time. He’s indicated he has no certification in this area at all and . . .
BY THE COURT: Let, let Mr. White finish the question prior to . . .
BY MR. WHITE: Yeah.
(DIRECT EXAMINATION CONTINUED)
18 BY MR. WHITE:
Q You’ve, you’ve been . . .
BY THE COURT: . . . prior to . . .
BY MR. WHITE:
Q . . . you said you’ve been trained fair, fairly, basically as far as methamphetamine production; is that correct?
A Yes.
Q That training consists of, of trying to just recognize or identify items? In other words, you’re not brought there to, to investigate meth labs or that sort of thing or do Hazmat . . .
A No.
Q . . . or any of that sort of thing; is that correct?
A Correct.
Q But your basic training consists of identification type ...
A Correct
Q . . . information?
BY MR. DEVARGAS: Your Honor, you . . . let, let, let me object to this particular line of questioning. He’s getting into his expertise in meth . . . in identifying meth, methamphetamine labs. He doesn’t have that expertise, Your Honor.
BY MR. WHITE: Judge, and, and, and the reason I’m offering this is just to show why this officer did what he did . . .
BY THE COURT: I understand. I’m going to . . .
BY MR. WHITE: . . . after that . . .
BY THE COURT: . . . overrule the objection.
BY MR. WHITE: . . . after that. Okay. Thank you, ...
19 BY THE COURT: I’m, I’m going to overrule . . .
BY MR. WHITE: . . . Judge.
BY THE COURT: . . . the objection.
Q And you said you noticed that fan in the, in the bedroom on a visit prior to this . . .
Q . . . June 29th visit?
Q Is that . . . would that have been one of the reasons you brought Officer Durham out there to that location with you on that particular night?
A It was one of several reasons, yes.
In State v. Bourque, 99-1625, p. 8 (La.App. 3 Cir. 6/21/00), 762 So.2d
1139, 1143-44, writ denied, 00-2234 (La. 6/1/01), 793 So.2d 181, this court stated:
A trial court’s ruling regarding admissibility of evidence should not be disturbed on review, absent manifest error. State v. Robertson, 98-883 (La.App. 3 Cir. 12/9/98); 723 So.2d 500. It is well settled that a lay witness may not testify to matters outside his or her personal knowledge. La.Code of Evid. art. 602. A police officer may testify as to matters within his personal knowledge acquired through experience without first qualifying as an expert. State v. Gibson, 97-108 (La.App. 3 Cir. 4/30/97); 693 So.2d 286.
Defense counsel’s objection came after Officer Gralap testified that the
fan may be used for some type of ventilation. The trial court did not err in overruling
defense counsel’s objection. Officer Gralap was testifying as a lay witness regarding
the reason for his increased suspicion as well as his reason for requesting the
assistance of Detective Durham. His testimony regarding the use of the fan was
20 based on basic training he received regarding methamphetamine production. The trial
court did not err in overruling the objection.
Other Crimes Evidence
Defendant claims the trial court erred in allowing the State to use other
crimes evidence at trial. He contests the admission into evidence of a transcript of his
guilty plea to possession of methamphetamine after the State closed its case in chief.
Specifically, Defendant challenges the admissibility of S-2, a prior Winn Parish
conviction, “used in connection with the Amended Bill of Information as well as the
introduction of other crimes evidence.” He contends that this prior conviction was
admitted in violation of State v. Prieur, 277 So.2d 126 (La.1973) because the State
failed to show the grounds for the relevancy or admissibility of the evidence. This
claim lacks merit. The State was not required to give Prieur notice.
In State v. Booker, 02-1269 (La.App. 1 Cir. 2/14/03), 839 So.2d 455,
writ denied, 03-1145 (La.10/31/03), 857 So.2d 476, the defendant was charged and
convicted of second degree murder on the basis that he was engaged in the
perpetration of cruelty to juveniles. On appeal, he claimed the trial court erred in
allowing an amendment to the indictment to state that the crime occurred between
“12/17/96 and 12/18/2000,” the entire life of the victim. The defendant contended
that this erroneously allowed the state to circumvent the notice requirements for use
of other crimes evidence. The first circuit, finding no merit to the defendant’s claim,
stated:
This is not a circumvention of the Code of Evidence. While our Code of Evidence prohibits the use of evidence of other crimes or wrongful acts to prove the character of a person in order to show that he acted in conformity therewith, such evidence is admissible “when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.”
21 La.Code Evid. art. 404(B)(1). In other words, when the evidence is relevant and probative to establish the elements of the crime charged, it is not rendered inadmissible because it also constitutes evidence of other criminal acts. The notice of use of other crimes evidence required under La.Code Evid. art. 404(B) and State v. Prieur, 277 So.2d 126 (La.1973), is not mandated when the evidence is relevant and probative to establish the elements of the crime charged. The limitations of Article 404(B)(1) on the admissibility of “other crimes, wrongs, or acts” evidence apply to exactly that — other crimes, wrongs, or acts — and not to the crime charged. State v. Duncan, 2002-0509, p. 11 (La.App. 1st Cir. 9/27/02), 835 So.2d 623.
Id. at 464-65.
Since the Winn Parish conviction was included in the bill of information
as an element of the offense in this case, it was not necessary for the State to follow
the procedures set forth by Prieur.
Defendant’s claim that the transcript of the Winn Parish plea was
erroneously admitted into evidence after the State closed its case in chief is factually
incorrect. Prior to the State resting its case, it offered, and the trial court allowed, the
introduction in evidence of State’s exhibits S-1 through S-7, which included the
transcript of Defendant’s Winn Parish guilty plea to possession of methamphetamine.
This assignment of error has no merit.
III.
CONCLUSION
The evidence is sufficient to support a conviction for violation of La.R.S.
40:983, “Creation or operation of a clandestine laboratory for the unlawful
manufacture of CDS II, to-wit, Methamphetamine.” The trial court’s denial of
Defendant’s Motion to Suppress is affirmed as well as the trial court’s decision
allowing the State to use “other crimes” evidence at trial.
22 We remand this case to the trial court for sentencing in accordance with
La.R.S. 40:982, the post-conviction sentencing enhancement provision.